Terms and Conditions
LAST UPDATE AUGUST 26, 2019
CAPSSION GUIDELINES | CONSUMER FIRSTWe strongly believe that all influencer activities should be transparent and put consumers first. CAPSSION expects that all users comply with the laws and regulations relating to influencer marketing. This means that all pieces of content which are being facilitated through CAPSSION should be transparent and labeled with appropriate disclosures, such as #ad.
CAPSSION GUIDELINES FOR BRANDBE OPEN: This platform is for Influencers: you may not know them, but rest assured their followers do. We believe accessing countless pockets of influence is far more meaningful than a large celebrity endorsement.BE RESPONSIVE: Respond to each request made by influencers quickly and send your offer in a timely manner, this will prevent Influencers from having a negative experience with your brand.BE BRAVE: Resist the urge to micro-manage. Everything from bad grammar to shaky footage makes up a unique dialect an Influencer has crafted with their community over hundreds (if not thousands) of posts. If you change the language, you’ll change the response.BE AWARE: Feel free to share an Influencer's post within the same social platform, however content cannot be used in any additional or other marketing material, nor should it be used outside of the original platform without getting their additional approval.BE TRANSPARENT: Be aware of the need to be transparent when engaging with influencers, and the requirement to label influencer posts with #ad.
CAPSSION GUIDELINES FOR INFLUENCERBE TRANSPARENT: Keep up to speed with the latest developments and best practices on how to label your posts in a transparent way to show that it is paid for by the brand. Don’t try to hide the fact that it is sponsored; both you and the brand will lose credibility if you do.BE MINDFUL: Only collaborate with brands that are in line with your editorial line and your community.BE GENEROUS: Publication must stay on your platform for at least 30 days.BE GENUINE: We work exclusively with Influencers who’ve organically grown their audience. If you’re misrepresenting the size of your audience or engagement in your content, we reserve the right to terminate your CAPSSION account.
1. SERVICE DESCRIPTION1.1 The Service provides Users with a platform that facilitates collaborations between Brands and Influencers on social media platforms. CAPSSION allows Influencers and Creators to collaborate with brands on projects of their choice. CAPSSION enables Brands to find, manage and collaborate with Influencers and Creators interested by their offers.
2. GENERAL CONDITIONS2.1 You may access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to CAPSSION.2.2 Unless otherwise indicated, you shall not:
- Sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; including without limitation, the development of a competing platform or access point for use or access to CAPSSION data,
- Use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components,
- Modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks,
- Store on any network, hard drive, computer or cloud-storage any data or information obtained from the Services or the Site for any period of more than 14 days.
6. ADDITIONAL TERMS FOR INFLUENCERS6.1 Any person over the age of 16 years, or over the age of 13 years with the written consent of a parent or legal guardian, may register an Influencer Account, but in order to participate in any Campaigns via the CAPSSION Platform, Influencer’s must meet the following minimum standards:
- at least 2000 followers on the Influencer’s Channels;
- Influencer’s Channels must be public (viewable by anyone); and
- you are aged over 16 years or over 13 years and have your parent or legal guardian’s consent;
- for Influencers aged over 16 years, if your Publication features children aged 16 or younger, that you are the parent or legal guardian of those children;
- for Influencers aged 13 years to 16 years, that you have your parent or legal guardian's consent and that your Publication does not feature other children aged 16 years or younger;
- the relevant Publication does not violate the privacy rights, contract rights or other rights (including Intellectual Property Rights) of any person, corporation or entity;
- the relevant Publication does not contain any misrepresentation or suggestion that you or any entity has the approval or sponsorship of any other entity which you or it does not have;
- any and all opinions and views stated in the relevant Publication are genuinely held by you;
- and any and all statements in the relevant Publication regarding your use and experience of the Brand or the Brand’s products or services are true and correct and representative of your opinion regardless of whether you are paid for such content or not, and fairly represent your use and experience and you will promptly notify CAPSSION if your opinion of the Brand changes from that which you have expressed to date;
- the relevant Publication does not contain any representations or material which you know or suspect (or ought reasonably to have known or suspected) to be false, misleading or deceptive;
- the relevant Publication is original and does not contain materials that have been previously broadcast, streamed, published, posted onto any social media channel, or otherwise communicated to the public by you in any way and does not contain materials that have been used in previous marketing materials or promotions for any third party or which otherwise infringe the rights of any third party;
- if the relevant Publication includes any Third Party Material (including music or personality/talent rights), that all such Third Party Material and any associated licence terms or use limitations have been fully disclosed to CAPSSION and the Brand;
- the use of the Publication and the exercise of the Intellectual Property Rights in the relevant Publication by the Brand and CAPSSION will not infringe any legal rights, copyright or other Intellectual Property Rights of any person or entity nor give rise to a liability to pay compensation.
6.14 You acknowledge and agree that the relevant Brand will not be required to remove from its social media channels any Publication or any comment, share or re-post of a Publication after the period in condition 6.13(b)(i) has expired.6.15 As an Influencer, in respect of each Publication, you consent to the relevant Brand and its successors, licensees, and assigns, and anyone authorised by them, changing, copying, adding to, taking from, adapting or translating, in any manner or context or doing any other act in respect of the Publication notwithstanding that such conduct may infringe your moral rights or performer’s rights (or similar laws in any territory or jurisdiction) in the Publication, and, to the extent possible, your grant a waiver of all moral rights and performer’s rights in each Publication.6.16 As an Influencer, you agree that you will not:
- to CAPSSION (and its agents):
- a royalty-free, perpetual, worldwide, irrevocable, unconditional, non-exclusive, transferable licence to use the Publication for the purpose of marketing and promoting CAPSSION (and its products and services) in any manner, without further notification to or consent of the Influencer or any further compensation payable to the Influencer;
- the right to use the Influencer’s Identity and performances in the Publication and to communicate the Publication to the public in all languages, in all media including but not limited to: all online paid media (including but not limited to digital banners); in all online owned media (including but not limited to the website of CAPSSION and internal communications of CAPSSION); in all social media (including but not limited to the social media channels of CAPSSION); and in any earned media or public relations activity published by a third party (including but not limited to print, digital and/or social media).
- to the relevant Brand (and its agents):
- the right to organically share, comment upon and organically re-post the relevant Publication in the social media channel upon which the Publication was published, for a period of thirty (30) days expiring at 11:59pm on the thirtieth day after the Publication was first published; and
- the right to use the Influencer’s Identity and performances in the Publication and to communicate the post to the public in accordance with conditions 6.13(b)(i) above and in any earned media or public relations activity published by a third party (including but not limited to print, digital and/or social media).
- delay posting your Publication no later than 14 days after after You have received your Offer (unless the Brand stipulates a different timeline);
- remove the Publication from your Channels for a period of 30 days after the Publication is published, expiring at 11:59pm on the thirtieth calendar day after the Publication is published;
- parody, disparage, give any adverse comment or make fun of the Brand or its products of services generally in any way;
- create any contextual or surrounding posts or other material on a Channel that in any way detracts from, dilutes the effect of, or undermines a Publication or the Brand or its products or services;
- grant any further rights in a Publication to a Brand without the written permission of CAPSSION and appropriate fees being negotiated on a reasonable basis. CAPSSION will charge a reasonable service fee for negotiating any use extensions between you and a Brand
7.5 CAPSSION has the right to cancel, suspend, restrict services to and/or terminate a Brand’s account if CAPSSION believes (in its sole discretion) that the Brand is not using the CAPSSION Platform in a fair and reasonable way, or are attempting to use the CAPSSION Platform in a way which does not treat the Influencers or the CAPSSION Platform in a fair and reasonable way and/or in accordance with the purposes for which the CAPSSION Platform were intended.7.6 Brand agrees to manage Influencers' requests in a timely manner. In particular, Brand agrees to:
- to grant to CAPSSION (and its agents), a royalty-free, perpetual, worldwide, irrevocable, unconditional, non-exclusive, transferable licence to use the Content for the purpose of marketing and promoting CAPSSION (and its products and services) in any manner, without further notification to or consent of the Brand or any compensation payable to the Brand; and
- Review and approve or reject Influencer’s requests within 5 business days from the moment it has been requested by the influencer.
- Ship the item to Influencers within 5 business days from the moment a request has been approved.
- you will not encourage or facilitate any misrepresentation or suggestion that the Brand or any entity has the approval or sponsorship of any other entity which the Brand or entity does not have;
- any Content you upload to the CAPSSION Platform does not contain any representations or material which you know or suspect (or ought reasonably to have known or suspected) to be false, misleading or deceptive; and
- where the Publication include Third Party Material, you will strictly comply with any use limitations notified to you in respect of the Third Party Material and will obtain all licences required for your intended use of the Publication prior to use of such Publication, including obtaining any licences required with respect to Third Party Material.
8. TRANSFER OF RIGHTS AND AUTHORIZATION ON IMAGE RIGHTS8.1 The Brand may obtain, subject to full payment of the price of this option and the prior written consent of the Influencer, the Intellectual Property Rights on the Content and to benefit from the authorization to use the images of the persons represented in such Content identified by the Brand upon request.8.2 In this case, this assignment of Intellectual Property Rights is made on an exclusive basis, for all purposes, all of its rights to the Content made hereunder, it being understood that the Influencer declares and guarantees that the rights transferred hereunder are the only rights it may exercise with respect to the Content.8.3 The rights assigned include the rights for any use and for any direct and indirect exploitation of all or part of the Content and any creation derived from it, whatever the mode, including all rights: (i) reproduction, (ii) representation, transformation, (iii) evolution and arrangement, (iv) exploitation, in particular commercial exploitation, distribution and marketing, including the right of rental; (v) translation, modification, correction and adaptation, rewriting, (vi) incorporation into any pre-existing or future work, (vii) use, (viii) sub-licensing; and this, in any capacity whatsoever, in whole or in part, in any language, by any means, process and in any form and format, on any medium known or to come.8.4 This assignment of rights is made worldwide and for the term of legal protection of the Content under applicable law and international conventions on literary and artistic property that are or will be in force, including any extensions that may be made to the term of protection. As a result of this assignment, the Brand acquires the status of beneficiary of the Influencer for the exercise of the above rights assigned and holds the most extensive rights in order to make any exploitation of all or part of the Content. With regard to image rights, the Influencer expressly authorizes the Brand to use, reproduce and/or represent all or part of the attributes of the person the Content for communication and marketing purposes, without limitation and on any communication medium as well as to transform, modify, reframe the Content, any commercial authorization being nevertheless prohibited.8.5 This authorization is granted to the Brand exclusively for the Content, in consideration of payment of the price determined by CAPSSION, for the entire world and for a period of ten (10) years. This authorization includes the right to make any modification, addition, deletion, cropping, dubbing, etc. to the initial fixation of the image that the Brand deems useful.
- You will immediately cease all use of and access to the Platform.
- CAPSSION may delete Your Account and any of Your Campaigns
10. PERSONAL DATA AND INFLUENCER INFORMATION10.1 Brand undertakes, represents and warrants that it will use and process Personal Data (in particular, the Personal Data of Influencers):
10.2 Brand further warrants that it implements sufficient security measures to ensure that the Personal Data are securely kept and maintained as required by the applicable personal data protection law,and agrees to subject itself to the necessary audits undertaken by CAPSSION to ensure compliance of the above warranties and to immediately inform CAPSSION of any Personal Data incident it becomes aware of.10.3 Brand will utilize Influencers information, including Personal Data, disclosed by CAPSSION to Brand or which Brand has otherwise collected or obtained access to pursuant to or in connection with this Agreement, solely for purposes of this Agreement and will not sell, assign, license, publish, lease or otherwise commercially exploit any Influencer information or utilize Influencer information in any manner for its own benefits or carry out any data mining, data compilation or data extraction for the purposes of statistical or trade analysis or otherwise, based on or in connection with the Influencer information. No Influencer information will be disclosed by Brand to any third party without the prior written consent of CAPSSION, and will only be disclosed within Brand’s organization on a need-to-know basis.10.4 Brand agrees to indemnify and hold harmless CAPSSION and each of its respective officers, employees, directors and agents from, and at CAPSSION’s option defend against, any and all liens, damages, losses, liabilities, obligations, penalties, claims, litigation, demands, defences, judgments, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including third party claims, reasonable attorney’s fees, consultants’ fees, experts' fees and other costs of litigation), to the extent such claims arise from or may be in any way attributable to:
- only for the purpose of the execution of this Agreement and not disclose it to third parties;
- in accordance with the requirements under the applicable personal data protection law; and
- in a manner that ensures CAPSSION remains in compliance with the requirements under the applicable personal data protection laws.
- any violation of this Agreement by Brand;
- the negligence, bad faith,or intentional or wilful misconduct of Brand or its subcontractors (whether or not approved by CAPSSION); or
- any security incident for which Brand is directly or indirectly responsible.
15. LIMITATION OF LIABILITY15.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL CAPSSION BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF SUBMISSIONS, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.15.2 IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, CAPSSION LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16. LITIGATION16.1 The Platform and these Terms are governed by the laws of laws of Hong Kong SAR, wherever You are accessing and/or using the Platform from.16.2 If you have a complaint about CAPSSION, we recommend that you contact us at email@example.com before taking further action in the hope that we can resolve the dispute fairly and amicably. If we are unable to reach a resolution, you agree to submit to the exclusive jurisdiction of the courts of Hong Kong who will have exclusive jurisdiction to settle any dispute or claim arising under these Terms.
- “Account” means a Brand Account or an Influencer Account;
- “Brand” means any person or entity, or its duly authorised agents or representatives, that use the CAPSSION Platform for the purpose of creating Campaigns;
- “Brand Account” means an account to use the Platform to create Campaigns and manage Influencer relationship;
- “CAPSSION Guidelines” means the code of practice and conduct that must be adhered to by Influencer’s and Brands;
- “CAPSSION Materials” means the CAPSSION Platform and any associated materials owned, developed or licensed by CAPSSION and made available via the CAPSSION Platform;
- “CAPSSION Platform” means the Influencer Interface, Brand Interface and any associated CAPSSION properties or websites;
- “Campaign” means a Product Gifting Campaign or an Event created by a Brand using the Platform to be opened to Influencers via the Influencer Interface for the purpose of finding appropriate Influencers to create Content about the Brand on their social media feed;
- “Channels” means the social media channels of an Influencer, such as (but not limited to) Instagram, Youtube, Facebook or Twitter;
- “Community” means an Influencer’s social media following on its Channels;
- “Content” means a Publication, or any other content or materials uploaded to the CAPSSION Platform by a Brand or an Influencer (but excludes any Third Party Material included in a Publication that is expressly disclosed to CAPSSION and the Brand);
- “Influencer” means a social media influencer who registers to use the Influencer Interface to create and distribute Publication about Brands;
- “Influencer Account” means an account to use the Platform to participate in Campaigns;
- “Influencer Interface” means the CAPSSION Mobile Application available for download via the Apple Store (iOs) or the Google Play Store (Android) or the Web Application available at https://platform.capssion.com/login/creator;
- “Influencer’s Identity” means the name, image, likeness, character and online persona of the Influencer;
- “Intellectual Property Rights” means all present or future intellectual property rights of whatever nature anywhere in the world including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trade marks, service marks, trade names, domain names, designs, any rights in silicon chip topography, Confidential Information and Know-How and similar industrial, commercial and intellectual property rights, whether or not registered or registrable, and includes the right to apply for the registration of such rights;
- “Laws” means all applicable laws, codes of practice and guidance relating to influencer marketing in the UK, including the Consumer Protection from Unfair Trading Regulations 2008 and the CAP Code, as well as any applicable guidance issued by the ASA, CAP, CMA, and/or Federal Trade Commission’s Guides Concerning Endorsements and Testimonials in Advertising (“FTC Guides”) from time to time;
- “Media Agency” means an authorised third party organisation acting on behalf of a Brand or Brands, including public relations, media, creative, design and digital agencies;
- “Payment” means payment from CAPSSION to an Influencer for a Publication or a payment from a Brand to CAPSSION, as the context requires;
- “Publication” means a social media post created by an Influencer to be shared with the Influencer’s Community via the Influencer’s Channels;
- “Publication Fee” means the fee an Influencer nominates as the amount it will charge a Brand to share a Publication with the Influencer’s Community via the nominated Channel;
- “Rights Fee” means the fixed-fee as stated on the CAPSSION Platform payable by a Brand to CAPSSION for a Rights Licence plus any applicable GST, VAT, or Federal Withholding or Sales Tax;
- “Rights Licence” means a licence from CAPSSION to the Brand for Content on the terms and conditions stated on the CAPSSION Platform and selected by the Brand, including in any specific content licence agreement;
- “Third Party Material“ means any material included in a Publication that is owned by or licensed from a third party, including material in relation to which there may be stated, inherent or industry practice-based use limitations as a result of the rights of third parties including, without limitation, rights in music, rights of personality, talent rights and similar;